Petition for Writ of Certiorari — Carpenters Local Union No. 345 v. Rubin

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See ee . ‘1 Office Supreme Court, U.S:

mean Berd, as. 2 6 te

MAR 2 1964-

,

——. - he Pit F. DAVIS, CLERK

IN. THE .

SUPREME — OF THE UNITED STATES

OCTOBER TERM, 1963

No. 95 i - on

I

CARPENTERS LOCAL. UNION NO. 345 OF THE. UNITED

‘BROTHERHOOD OF CARPENTERS AND JOINERS OF.

-AMERICA, and. H. A. KELLUM, PRESIDENT, OTTO »

_ SCHLAFER, BUSINESS AGENT, “na Sy

SS , abe Petitioners, ,

a _VS. :

HOWARD RUBIN, d/b/a, “HOWARD RUBIN

CT fe AND. COMPANY, Pater

Respondents. : 8

“ee .

. PETITION FOR A WRIT OF CERTIORARI TO THE o

CHANCERY COURT OF SHELBY COUNTY,

TENNESSEE

@ _?

e eid 2 \

ANTHONY: J. SABELLA

1401 Columbian Mutual —

Memphis, Tennessee 38103

Attorney for Petitioners

E. L.-Menpantgit, INnc., 1108 Oak Street, Kansas City, Mo 64106. HArnson 1-302%

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* : __ INDEX

8pinions Below ae OR aIe EE ee Soe ee: ares NEON ze a 2

Jurisdiction atts nema aces siesmancebeteiins aces a

Questions Presented: 20.020 .0..ccccseesseteeseeeseeeee. ace eS ak

ee eae oD cs yes A LI NITES. OOS AEE ws 2

SUMO anna gan tana nae nt Bieedocenenennnntcnetenneenentnseenenneceense *G

Reasons 1 for ‘Granting the Writ secsleneepiiencetaempngelaassucclseuies eS, aA

Conclusion Sy raalenb ioe re SaconenaaN ilar cisposas lacs Ls esiinan canna golagie i ee

Gow : ‘

Appendix A, Statutes Involved) ..o(..c} ogee Al

Appendix B, Petition for Writ of: Pr and Other

; vege Fess secieaied chan enninhecaistakcobtiaaenicemdomacuaancn ace aad ee

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CITATIONS — i

Cases: eh i ee ees

_ Liner v. - Ja§co;- Inc... eee te oy OA S. Ct. 391, |

- 48- Tee I cc es Mee 4

Local No. 438, Construction and General Laborers

Union v..Curry, 371. U.S. 542... a Cenk Nee eer g ne 4

\ IBEW v. Farnsworth and Chambers; 353 US. 969 rae

San Diego Building Tra¢les v. Garmon: 359. U.S. 236 a6 -;

Statutes: eek

National Labor_-Retatigns” Ket, A Ke Amended (29

“U.S.C., Section 151, et ____ BBDRUaS Osean teens Fen ee A Al

Tennessee Code’ Annotated ee Mo a pone A2

y. _ Tennessee Code Annotated 27- 801 peas! » cksea vases A2

F . Y

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of

- IN THE *

~ SUPREME count OF OF THE UNITED STATE :

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2

:” OCTOBER TERM, 1963. 7

CARPENTERS LOCAL UNI ION NO. 345 OF THE UNITED

a *. BROTHERHOOD ‘OF CARPENTERS AND JOINERS OF

AMERICA, and H. A. KEELUM, PRESIDENT, OTTO.

‘CHLAFER, BUSINESS SENT,

; Petitioners, .

*.

pg vs

"HOWARD ‘RUBIN; d/b/a, HOWARD RUBIN

/ &ND COMPANY,

y/ Respondents. ine he

£

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\ “4° °

Noe,/ PETITION FOR A WRIT OF CERTIORARI TO THE

: NCERY COURT OF SHELBY COUNTY,

‘ TENNESSEE us fae :

arpenters: Local Union No. 345 of ‘the U, United Broth-

7 erhdod of ‘Carpenter$ and Joiners of America, fi. A. Kellum,

Writ of Certiorari issue to review the judgment and order

of the Chancery Court of Shelby County,.Tennessee, The

Supreme Court of Tennessee has: denied the petitioners’

petition for a Writ of Certiorari to review the order and

judgment of the Chancery Court of Shelby County, Ten-

nessee.+ ?

President and Otto Schlafer, Business Agent, pray that a-

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OTE vast ete org

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. © OPINIONS BELOW & |

The ‘Supreme Court of ‘Tennessee shinee no “opin-

“icf, ineits denial- of the Writ but noted: on. the ‘petition.

°, “Petition. denied: White, J., March 12, 1964” (App. B, AD).

ie The Chancery Court of Shelby Gounty did not ite

‘an opinion but in its decree foynd that picketing violated

Tennessee Right- To- Work. Law and it had jurisdiction . over

* this matter ag 14). ua Sue owe,

*

JURISDICTION. oh

*

“The davis of the Chancery Court of Shelby Goanty.

oe

Tennéssee, was entered on February 10, 1964: The Su- ’

preme Court of Tennessee denied the Writ on March f2,

-1964. The jurisdictions of this Court is, involved under ’

“98 U.S.C. 1257 ( 3).

2

. 2

a

°

yee “qvesTIONs PRESENTED

6

* 1. May a state court. assume jurisdiction | of. “Peace,

ful picketing undér ‘its “Right-To-Work” statute ‘(Termes-*

see Code Annotatcd 50-209) ‘where thé picketing is ‘an

arguable violation of the National Labor Relations Act,

as amen 29 U.S.C. 151 et seq.) or protected concerted

activity unc nat statute. rage :

\STATUTES INVOLVED?

¢ the aa MF "provisions of: the National Labor Re-

tations Act, as amended, 29 U.S.C., Section 151 et seq., are

set forth in 1 Appendix A.

ne

:

oe as "STATEMENT Of THE CASE ee

° mea

Petitioner labor organization , is a labor organization,

* engaged in collective bargdining with building contkactors

in and around Memphis, Shelby County, Tennessee}" The

individual petitioners are the ‘main execgtive officers of

the labor organizatign., ‘Respondent. is a building contrac-

ter engaged in the construction of a 96 unit epualenanae

——- (R. CER aes oe

=On January 00: 1964, the: cicisiiaad filed his orighiial Ze

bill for injunctive. relief against petitioners seeking an in-

juhetion to restrain petitioners. and any members, agents,

servants or employees fr om. further picketing of any kind

(Re 3).

: The bill spectlicaily alleged that thé picket signs : aed

' “Men:bers of the Carpenters Local +345 are not employed

by Howard Rubin & Company on this job; that the puf-

“pose of said signs and_said: pickets are to cause the, com-

plainant to discharge all its snon-union labor and to force

your complainant to hife’in their stead only union labor,’

(R. 2). , it further alleged that the picketing was “to calyse

and britig about a ynion. shop-. > in Slap caper of Section

50- 209, Tennesseé. Coce, Afnotated . *-(R. 3).

Oni Februar 3; 1964, ‘petitioners’ filed a swort ‘answer

and plea in abatement iri which it was averred that the

= ‘construction project directly ‘affected interstate commerce

and therefore was within the ‘ex@fusive jurisdiction of”

the _ National Labor ‘Relations Board (R. 6). Petitioners

denied that the object ‘of ‘thie picketing was to cause. re-

spondents to discharge Mts non-union employees, averred

that it was: tor“the ‘purpose ‘of: advising’ the public that.

- respondent did not ey members of the petitioner

“labor organization R.

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' Petitioners averred that the Chancery Court did not . -

have. a ‘of the subject matter of. the bill because - :

£2 anige - OF. protected « concerted activities “cfecing inter-

= 3 _prayefl for distnissél of the bill because of the lack of juris- a

P i

7

‘The perien Court, as is : its customary procedure,

consideted the matter’on bill and-dnswer, assumed juris-

diction ‘on the basis of the Tennessee Right- To-Work® Law |

q@ and ished its ingunction restraining all picketing (R. 14).

On February 24, 1964, petitioners sought review of |

ans CHancery ‘Court order: and judgment - -because it ex- ee

“ceed ts jurisdiction. as it had a right to | tinder Tennes- |

- see Cade Annotated 27- 801 (App. A, A2)\ On March )

1964, by notation-on the petition for Writ of Certiorari, the

‘o writ vas denied (App. B, AS).

.

“Ths tere: is a final order asserting jurtediction over

a subject matter which is beyond the power of thé state |

court and instead is within the. exclusive jurisdiction of

tite ‘National Labor Relations Board.

/ . REASONS ono GRANTING THE WRIT

Y ieee ; St sp ted :

’. A. The foregoing facts readily reveal that the decision ~

of the Cdurt below is in direct conflict w ith the decisions

“of this Co San Diego Building Trades v. Garmon, 359 _

- US. 236: IBEW v. Farnsworth and Chambers, 353 U.S.

’ 969; Local No. 438, Coristruction. and General ° Laborers

Union v. ‘Curry, 371 U.S. 542; Liner v. Jafco, Inc., US

Pi.” - / cuxdpncy O48. Ct. B01, 48 Le. Par. 50,985 (decided January

7 | 6, 1964). The Tennessee Cotirt, in constituting itself a

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‘forum ‘for deciding facts.and effectuating a remedy aris-

ing out of acts and conduct whichwere “arguable”

-ungair labor practices’ or, pretect

either

oncerted activity, has’

asserted jurisdictionsin an area Bhich is within thé « ex: -

clusive province of the National Labor. Relations’ Board.

The attitude of the: Tennessee Court: towards this labor

controv ersy and the procedure used to implement such

: has produced . incompatible and. conflicting .

and adjudicaticn at variance with the clear intent of the

contr oversy

* National Labor Relations Act; as. amended, cf. San mee

wBuilding Trades v. Garmon, supra.

. .

Gat

B. The only basis asserted .below for ‘assumption of

jurisdiction is that the picketing is, or. may. also be a vio-

lation of the, Tennessee Right- To-Wark. Law.

'. Farngwor. .

ie General Laborers Union v. Curry, supra.

This Court ©

aye? considered and rejected this precise contention in IBEW

and C hambers and Local $38, Construction,

“da The temporary injunction herein is as fina] on

Board.

Hor the

a

A set: forth, it is respectfully Lubmitted .

‘Jafco, Inc.,

CONCLUSION

Supra.

If: ‘permitted to stand it .

Local’ 438, ‘Construction and General Laborers!

Union v. Curry and Liner ¥.

that this a iM: for Writ of Certiorari Should be granted, —

Respectfully ibiniteed

¢

ee ee eee et See rer ae

‘ANTHONY Je “SABELLA

1461 Columbian ‘Mutua! Tower

Memphis, | Tennessee 38103

Attorney for Petitioners

a

- the issue of jurisdiction as any final prder can be ‘and is

rev iewablé as. any final order.

“would -erode the national labor policy requiring ‘the sub-.

ject midtter to be “heard by the Nationa! Labor _Rel lations

\

See

¢ - APPENDIXA ... |

ta _ Statutes Involved a

oe ° National Labor Relations Act, as amended, . 29 USC.,

Section 151 et seq . 3

Rights of * Employees ,

@ “Section 157. Emplgyees shall have te right to

self- ofhenieation. to form, join, or.@ssist labor organiza-

tions, to ‘bargain collectively ‘through representatives of

their own choosing, and to engage in other concerted activ- :

Tties for the purpose of collective bargaining or other |

\ mutual aid or protection, and shall,alsc shave the right to

refrain frém any or all of such activities except to the ex-

‘tent that such right may be affected by an agreement re-

quiring membership in a labor organization as a condi-

tion of employ ment as authorized in Section. 158 (a) (3) of

this title. aa, ¢

Unfair abor Practices

“Section 158. (b) (2). To cause or attempt to cause

‘ an employer to discriminate against" ‘an employee in \vio-

lation of subsection (a) (2 tof this,;section or to’ ‘discrimi-

nate against an employee with respect to whom’ member-

shtp in such ortaniz zation has been denied or terminated

on some grounu other than his failare to tender the periodic

dues and the initiation fee uniformly yequired as. a cendi-

tion ob acquiring or retairting rem bership. |

. Section 158 <b) (7) (ce)... Provided further, that

ee in this subparagraph (C) shall be construed to

prohibit any picketing or other publicity for the purpose-

" of truthfully advising the public (ineluding consumers)

~*

~

A2

e oer ts

that” an employ ee does not employ members of, or have

a coNtract with a iabor or ganization, unless an ‘effect: of

such picketing jis to induce any individual employed -by

.* ° al

any other person in the ‘course of his ‘employment, not to-

pick up, deliver o1 - transport any goods or not to perform ©

anv services.. —. apex

- ° . 8 : a

Tennessee Code Annotated 50-209. t

It shall be unlawful for any person, firm, corporation

or®association of any kind to énter into any contract, ¢om-

bination or agreement, written or oral, providing for. ex-

clusion from employment of any person because of mem-

bership. in, affiliation with, | resignation from,’ or refusal

to join or affiliate with any labor union ‘er employee or-

ganization“Of any kind.

G :

.

. Tennessee Code Annotated 27 801.

The writ of certiorari may’ be granted whenever au-

thorized by law, and also in all cases where an pferior

tribunal, board, or officer exercising judicial functions

chas exceeded the jurisdiction conferred, or is acting ilie-

gally when ‘in the judgment of fhe court, there ino" “plain,

‘speedy or adequate remedy.

ge APPENDIX B-

Petition for, Writ of Certiorari and Other Relief

. To the Henorables, the Chief Justice and the Associate

. . i

Justices of the Supreme. Court of Tennessee:

“Petitioners pray that writ of certiorari issue to review

the judgment of the Chancellor, fart 2 of the Chancery

Court of Shelby County. assuming jurisdiction of a matter

reserved exclusively to the National Labor Relations Board

\

and ‘entering a temporary injunction - and enjoining the

petitioners and any members of said: union, its agents, serv-

“. ants or employees from further picketing on or about the »

: we described in the original bill.

‘Your: petitioners would show that. they are and were

very much aggrieved by the judgment of. the Court below

because it has exceeded its ‘jurisdiction, ‘ ‘or is acting il-” -

legaliy” and that petitioners have no othér plain. speedy

or inadequate —— Sy ter

Your petitioners would: respectfully show, that despite

their plea in abatement to the original bill for injunctive

relief because the subject-matter .was-a matter involving «

unfair Jabor practices within the coverage of the’ Nationat-

Labor Relations. Act, as amended, and therefore within .

the exclusive jurisdiction %f the National Labor Relations

. Board, the Court below ‘assumed jurisdiction because the.

picketing violated the so-called Tennessee Right- To-Work

byes TCA 50-208, -et seq.’ PIES

The United States es Supreme ne Court has vepecitediy Held of :

and ruled+thatstat@ courts have been pre-empted on juris=

diction of acts and conduct Wwhigh are “arguably” viola-

tions of the National Labor Relations Act. as amended.

San Diego Building Trades Council, etc... Vv. Garthon et al.,

399° U.S. 236, and_ cases cited ‘below... | eRe

The United States Supreme | Court. has reversed this

Court on the precise findings of the Court below that, its

jurisdiction is sustainable by reason of the so-called Ten-

nessee Right-To-Work Law. Local Uimon. 429 v. Parns-

worth and ‘Chambers Company, 353. US. os reversing

ony Tenn. _* . 298 S.W2d 8: Li ner V. ; Jafeo, 22.:...;US

sh revétsing Tenn. Court of Appeals, decided January

1964. -Se& also Local No: 438 Const) ruction and General

vorers Union ¥. Cu ry, 371 US. 042, on, this precise point.

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Petitioners have procured a certified copy of the rec-

"2 ord and have attached it to th: is “petition as Exhibit “A’l ~~

(ea PREMISES CONSIDERED, PETITIONERS rmae:

4 ie transcript of the proceedings in this inne ae

the Chancery Court, Part 2, Shelby County, certified by-

the Clerk and Master of said‘Court to be a full, true and

' perfect transcript thereof, and this petition for the writ

_of-certiorari and ‘other relief. tendered herewith be, by .

fiat, ordered filed with and by the Clerk of the Supreme

‘Court. 2

Wie acc Bee plated psn’ the docket of this

Gourt for argument and ‘that the judgment and order of -

_.the Charicery Court, Part 2, Shelby Couggy, be reviewed

and reversed and. that a judgment be - renc iered herein,

for petitioners.

—_— —

—

3. . That the catibioniers have such other, further, and

general relief to which they may be entitled.

THIS. IS THE FIRST. APPLIC: ATION FOR A WRIT

OK CERTIORARI IN THIS CASE.

- /s .Anthony J. Sabella | ee

‘+ - Anthony J. Sabella ms

“Attorney for Petitioners

STATE OF TENNESSEE *

Ph -

COUNTY OF SHELBY }

I, Anthony J. Sabella, being duly sworn, make Gath

that I am Attorney for petitioners; that Iam familiar with.

the facts stated in the for egoing petition and that the same

are true, except those’ stated on information and belief and.

those I believe to be true; an? that further that in my

_opinion, petitioners are entitleu to*the relief, ‘prayed.

wy v7 s’ Anthonv J. Sabelia

oF i ig ms ies

* Sworn to and subscribed before, me this 19th aay of

February, 1964. © - |

- " Y¥s/'R. H. Pearson |

Notary Public

- <ey Commission expires: August 29, 1965 :

Notice of Hearing - '

fea

To: Al H. Thomas, Esq., Solicitor for Respondents:

_ ®+ 81 Madison Building ot >

ee .

..Memphis,- Tennessee * 5 geo

i os eaten.

Please take notice that : will present the above ‘artd’:

j foregoing petition tothe Supreme Court of Tennessee, or

one of the Justices,-in Nashville, Tennessee on the 24th:

dav of February, 1964, at 9:30 o'clock A.M., and seek the

relief prayed for sa ’

”

Nn CERTIFICATE. OF SERVICE. - ar

f, Anthotiy ‘13. Sabella, Attorney for - petitioners in this

cause, hereby: certify that I have served a copy of the

above and: foregoing petition upon Al H: Thomas, Esq.,

by aelivering a copy of the same-to him at his office in’

thee $1 Madison Building. Memphis, Tennéssée, ‘this 20th.

day of: Februar’. 1964. <

‘ ./S/ Anthony J- Sabella

; ‘ - Anthony J grabella,

Petition denied. !

- White, J. | ~ | Sa ee

March 12, 1904 2 ae oe